Bench Memos

Re: Iowa’s Same-Sex Marriage Ruling

In addition to Matt’s superb article, I’d also recommend Andy McCarthy’s NRO essay today.   

Prominent among the many hostile responses that my own immediate post about the Iowa ruling elicited was the claim that there’s no such thing as judicial activism—a claim often made by the same folks who, inconsistently, see lots of “conservative judicial activism.”  I’ve addressed this tired and empty claim on numerous occasions (including here).  I’ll just add here that if federal and state constitutions are truly indeterminate on a matter like the permissibility of traditional marriage laws (as some critics of the term “judicial activism” maintain), then judges, in a constitutional republic, have no warrant for overriding those laws.  Those who believe otherwise effectively advocate a system of government by judiciary, where the realm of representative government is confined to those matters that judges just don’t think are important enough or interesting enough to meddle in. 

Our judicial emperors have no clothes.  But the courtiers and sycophants of liberal judicial activism and the peddlers of imaginary robes will continue to pretend otherwise.

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